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Caladine, Richard --- "Can I Take It With Me When I Go? Who Owns Online Courseware?" [2001] JlLawInfoSci 10; (2001) 12(1) Journal of Law, Information and Science 129

Can I Take It With Me When I Go?
Who Owns Online Courseware?

RICHARD CALADINE[*]

Abstract

In only a few years online education has matured and moved from the aegis of the early adopters into the mainstream of higher education in Australia and around the world. When learning is put online it is commodified and as such can consist of tangible, transferable products that can attract a flow of revenue.

Traditionally academics have owned the intellectual property in the course materials they create. However with online learning many institutions are claiming that they should own it as they provide the facilities and infrastructure that makes online learning possible. However, this was not, and is not, an issue with the facilities provided for face to face teaching and learning. If institutions own the intellectual property in online courseware the problems associated with its commodification can be exacerbated through the separation of learners and the experts who created it. As well corporate style institutional objectives can impinge on academic freedom.

In a perfect world where learning and speculative research is fully funded legislation would decree that the intellectual property created by academics would remain theirs. Sadly we do not live in such a world and agreements must be reached between the parties to ensure the interests of all are protected.

1. Introduction

Online learning has become part of the milieu of most Australian Universities. For many, if not most institutions online learning has matured to the degree where it has moved away from the aegis of early adopters and into the mainstream. Commercially available online learning packages such as Blackboard™ and WebCT™ are now the norm. As well as hosting content and facilitating interactions between students and teachers they provide some infrastructural support generally in the form of student/course management tools.

Institutional processes and resources are also moving online. For example eReadings, student surveys, enrolment procedures and other administrative tasks in many institutions can now be found on the institution's web site and often inducements are offered to students to interact with administration in this way. These factors are indications of changes from learning web sites to eLearning portals and from institutions with an online learning component to eUniversities. These are characteristics of what Taylor, refers to as the “Fifth Generation of Distance Education".

"The fifth generation of distance education is essentially a derivation of the fourth generation, which aims to capitalize on the features of the Internet and the Web."[1]

Taylor's description of the generations of distance education is worth noting as it provides a neat encapsulation of the history of distance education and suggests that flexible and online leaning have evolved from distance education. He describes the generations of distance education and their associated delivery technologies as:

First Generation - The Correspondence Model
Print
Second Generation - The Multi-Media Model
Print
Audiotape
Videotape
Computer-based learning (eg CML/CAL/IMM)
Interactive video (disk and tape)
Third Generation - The Telelearning Model
Audioteleconferencing
Videoconferencing
Audiographic Communication
Broadcast TV/Radio and Audioteleconferencing
Fourth Generation - The Flexible Learning Model
Interactive multimedia (IMM) online
Internet based access to WWW resources
Computer mediated communications
Fifth Generation - The Intelligent Flexible Learning Model
Interactive multimedia (IMM) online
Internet based access to WWW resources
Computer mediated communication, using automated response systems
Campus portal access to institutional processes and resources[2]

While Taylor's Generations of Distance Education form a handy background, they do not indicate the increase in volume that has occurred between the third and fourth and the fourth and fifth generations. This increase has occurred as the traditionally separate markets for distance education and face to face education have merged. As online learning opens institutional doors to larger markets the growth in online course material has been spectacular and echoes the growth rate of the Internet in the late nineties. For example, at University of Wollongong in the last two years the number of subjects with an online component has almost doubled and this growth rate is expected to continue for at least the next year. Such growth rates are not atypical of most Australian Universities. The large number of institutions with large numbers of online courses draws attention to the scale of the potential problem if the ownership of the intellectual property is contested, or worse uncertain.

2. The Growth of Online Learning and Australian Copyright Law

Before the Fourth and Fifth Generations of Distance Education, when the process of teaching and learning was predominantly face to face, the question of who owned it was rarely raised. The face to face process was, and is ephemeral and while it could be repeated was not readily encapsulated into an effective and transferable form. Consequently, apart from the materials (mainly books) the law of intellectual property and specifically, copyright had little to do with what went on in classrooms. For academics and the institutions they worked for Intellectual property policies applied mainly to ownership of patents.

The nature of the process of online learning is obviously markedly different to that of face to face. In many cases encapsulation of content has meant that something tangible exists where it did not before. It is the ownership of the intellectual property in these tangible course materials that this paper is concerned with, but before going further some terms must be defined.

For this paper the definitions of the terms, "copyright" and "intellectual property" are those published by the Australian Attorney-General's department:

1.1 Copyright is a type of property that is founded on a person's creative skill and labour. It is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator.
1.2 Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter. These rights include the right to copy, publish, broadcast and publicly perform the copyright material.[3]
2.1 Copyright is part of an area of law known as intellectual property. Intellectual property law protects the property rights in creative and inventive endeavours. Intellectual property law gives to creators and inventors certain exclusive economic rights, generally for a limited time, to deal with their creative works or inventions. This legal protection is designed to encourage further intellectual creativity and innovation as well as enabling access by the community to the products of intellectual property. Because intellectual property protects rights, rather than physical property, intellectual property is an intangible form of property. It is property which cannot be seen or touched.
2.2 Intellectual property is mainly protected by specific Commonwealth laws. Intellectual property is the general name given to the laws covering patents, trade marks, designs, circuit layouts, plant breeder's rights and copyright. Each of these forms of intellectual property are protected by a specific Act of Parliament. The framework for these Acts is largely based on Australia's obligations under international treaties.[4]

One of the broad foundations of the Australian Copyright Act 1968 is the principle that the author or creator of a work usually owns copyright of it. One notable exemption to this is covered by clause 35(6) of the act, which states:

Where a literary, dramatic or artistic work to which neither of the last two preceding subsections applies, or a musical work, is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.

So it is evident that copyright in things made during the course of employment are owned by the employer not the employee unless there is an agreement in place. For example the copyright in articles written by a journalist while in the employ of the Sydney Morning Herald are the property of the Herald or its owner. Microsoft owns the copyright in software produced by a programmer while in the employ of Microsoft. The term "literary work" as used in the Copyright Act has been defined broadly enough to include materials produced by academics as courseware.

The term "literary work" as used in the Copyright Act, 1968 extends beyond novels and similar writings whose style and quality might be 'literary' in the ordinary meaning of that word. It includes, but is not restricted to, tables and compilations in words or figures, computer programs (whether or not in a visible human readable form), databases of information, instructions for the use of chemicals or machines, the words of a song and the rules of a game.[5]

Traditionally courseware has been exempted from section 35(6) of the Copyright Act. In most Australian Universities intellectual property policies were seldom, if ever, used in relation to course materials including text-books. In the past they have mainly related to patents. However in the current situation where academics are under pressure to put courses online, the question of ownership has been raised. Some managers of institutions have questioned the traditional exemption of courseware from section 35(6) of the Copyright Act and the advice of the Australian Vice-Chancellors' Committee (AVCC) stresses the importance of making this clear.

The more precisely the duties of that staff member are set out in his or her contract of employment, the more clear cut the legal ownership position will be. One way to achieve clarity as to the duties of staff may be through internal legislation or guidelines which are incorporated by reference in all contracts of employment.[6]

3. Arguments put by Institutions for Ownership of Intellectual Property in Coursework

Many institutions have claimed that they should own intellectual property in online courseware as they have provided costly infrastructure. They argue that they have provided the software and hardware of the web site and the personnel to administer it. In many cases the institution also argues that it has provided services that assist staff in getting their courses online. The AVCC pursues this argument:

Where an institution has invested considerable sums in capital equipment such as laboratories, specialised scientific equipment, computer laboratories and media equipment, it can be argued that intellectual property created through the use of the capital investment should as a matter of policy be owned by the institution, or that the institution should be reimbursed for having made the equipment available.[7]

However, significant facilities were (and are) provided to host face to face teaching and ownership of this was not an issue. Indeed it would be ridiculous to charge teachers for use of a lecture theatre or a classroom! The deciding factor appears to be the encapsulation of part of the learning process in media. This has created products that are more tangible than the teaching and learning taking place in a classroom. Products that could be transferred or delivered to students.

4. Commodification of Learning

At about the same time as the start of the rapid growth in online learning, government funding for tertiary education was shrinking. University managers were faced with increased demand for courses and a reduction in funding to provide them. For many flexible learning was touted as a way to do more with less. While most experience has been that flexible learning has not provided the promised economies it has provided a way for managers of universities to establish a flow of revenue. By turning learning materials and interactions into commodities that can be transferred via the Internet, fee-paying students can be attracted from a global rather than regional marketplace. Of course to control the flow of revenue and to guarantee the provision of the service, managers of institutions are keen to control course material which can best be achieved by owning the intellectual property in it.

Aside from the issue of who owns it, there are traps into which commodifiers of learning can fall. While online learning can have many advantages, especially in terms of where and when students study, it can lead to problems. When courses are encapsulated in media, students are separated from the experts who created the materials which can lead to a degrading of the learning experience through one or more of several avenues.

In many tertiary courses, currency of information is paramount and courseware can become out of date. Determination of an appropriate shelf life for courseware must be by academic factors rather than market forces. The expert academic is generally best placed to decide the shelf life. The problems of shelf life can be exacerbated by casualisation of a workforce where staff are employed on short contracts to create courseware alone. As well any nexus which exists between research and teaching is put at risk.

When institutions own the intellectual property in courseware there is a potential to impinge on academic freedom as goals change from being those of the academic(s) doing the work to those of the institution.

... academic freedom of thought and expression might be unduly curtailed if colleges and universities could control academic output in the manner that large corporations control the output of their employees.[8]

It is clear that there are problems in the ownership of intellectual property of coursework by institutions. It is just as clear to this researcher, that outside of perfect world in which institutions received adequate funding they will insist on owning the intellectual property in the courses they host.

There are good reasons why courseware should be owned by the academic staff who create them. However, institutions have, and for the foreseeable future will continue to insist that they have ownership. It appears that agreements between management and staff will set out the ownership of intellectual property in courseware and the arrangements for the transfer of ownership. What then remains to be discussed is the nature and content of these agreements.

5. Agreements

Perhaps in a perfect world, where institutions were fully funded to carry out speculative research and teaching no agreement would be necessary between managers and academics as perfect world legislation would decree that all intellectual property would be owned by the person who created it. But we do not live in such a world. In this world there are two basic approaches taken to the ownership of courseware. Burk[9] refers to them as the "patent model" and the "textbook model". In the "patent model",

.. ownership is transferred from the inventor to the sponsoring institution, which assumes responsibility for licensing and enforcement. The inventor in return receives a royalty. The second model ...has traditionally been adopted for textbooks produced by faculty. The author of the book retains the copyright and assumes primary responsibility for licensing and managing the book[10]

In each case any agreement must protect and reward the creators of courseware while providing incentives for the institution to provide the infrastructure necessary to host the courses. Broadly, this can be achieved by the creator of the courseware licensing use of it to the institution or the institution assuming ownership of the courseware under section 35(6) of the Copyright Act. In each case measures of protection of the interests of the creator of the courseware and the institution can be provided.

If it is agreed that the institution will assume ownership of intellectual property in courseware, there are two ways in which the interests of the creators of the courseware can be protected. Firstly financial arrangements regarding income to the institution, the department and the academic must be clearly spelt out in the contact of employment and/or the intellectual property policy. Secondly a robust "Moral Rights" clause must be included into the intellectual property policy. Moral rights are designed to recognise and protect authors of works. They are defined in sections 195AI and 195AJ of the Copyright Act as:

(1) The author of a work has a right of integrity of authorship in respect of the work.
(2) The author's right is the right not to have the work subjected to derogatory treatment.
In this Part:
derogatory treatment , in relation to a literary, dramatic or musical work, means:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation; or
(b) the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation.

A suitable moral rights clause must allow for the withdrawal of courseware by its creators and it must also set out arrangements for updating of material. As well the clause must provide for control of the courseware by its creators regardless of whether they are employed by the institution hosting the course.

In cases where the academic retains the intellectual property in the courseware an agreement between him or her and the institution needs to be made to protect the interests of both parties. The academic must be adequately rewarded through a payment structure of some kind and the terms of the agreement must allow the institution the ability to adequately host the course.

6. Conclusion

Online learning as described by the "Fifth Generation of Distance Education"[11] is quickly becoming a reality in most universities and anyone who creates courseware must be aware of the institutional policies that change intellectual property when that courseware is placed online. The future success of online learning will be determined in large part by several factors. Not the least of these is the quality of the commodified learning materials. If they are out of date or not informed by recent research, they will quickly fail in the global market. If academic freedom is compromised by corporate style goals, the incentive to create high quality courseware will shrink and disappear.

There are arguments for the intellectual property in courseware to be owned by the institution. There are also arguments for it to be owned by the creator of it. In each case an agreement between the two parties must be struck in order to protect each of them. The design process of the agreement must be made clear to all parties who will be affected by it. As well such agreements will fail unless a group consisting of equal representation of all stakeholders has designed them.

Bibliography

Attorney-General's Department (2000) Copyright Law in Australia: A Short Guide.

http://law.gov.au/publications/copyrightaus99.htm, accessed 9 July 2001.

Australian Vice-Chancellor's Committee (AVCC) (1995) Ownership of Intellectual Property in Higher Education Institutions.

Burk, D. (1997) Ownership of Electronic Course Materials in Higher Education Cause/Effect 20, 3.

http://www.educause.edu/ir/library/html/cem9734.htm, accessed 11 July 2001.

Caladine, R. (1999) Teaching for Flexible Learning: Learning to Apply the Technology. GSSE: Monmouthshire.

Davenport, E. and Cronin, B. (2000) Knowledge Management: Semantic Drift or Conceptual Shift Association for Library and Information Science Education: Reston, Virginia, http://www.alise.org/nondiscuss/conf00_Davenport-Cronin_paper.htm, accessed 6 July 2001.

Hart, J. and Salmon, K. (2001) "Faculty, Institutions Face Off Over Ownership of 'Courseware'", Wall Street Journal May 10, 2001 New York.

Kelly, K. (2000) Courseware Development for Distance Education: Issues and Policy Models for Faculty Ownership. Proecedings of EDUCAUSE 2000 Nashville .

Newmarch, J. (2000) Who Owns University Courseware? AUSWEB2000 http://ausweb.scu.edu.au/aw2k/papers/newmarch/paper.html, accessed 9 July 2001.

Roberts, R. (1998) "Rereading Lyotard: Knowledge, Commodification and Higher Education", Electronic Journal of Sociology: 3,3 http://www.sociology.org/content/vol003.003/roberts.html accessed 10 July 2001.

Powe, J. (1997) Who Owns Multimedia Courseware - Faculty or the Institution? Self published paper.

http://www.public.asu.edu/~jeremy/jxrownershipcause.html accessed 9 July 2001.

Taylor, JC (2001) Fifth Generation Distance Education Keynote address at the 20th ICDE World Conference, Düsseldorf, Germany.

Twigg, C.A. (2000) Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment Center for Academic Transformation Rensselear Polytechnic: Troy.

Web-Based Education Commission (2000) The Power of the Internet for Learning self publication: Washington.


[*] Centre for Educational Development and Interactive Resources (CEDIR), University of Wollongong.

[1] Taylor, JC (2001) Fifth Generation Distance Education Keynote address at the 20th ICDE World Conference, Düsseldorf, Germany.

[2] Ibid.

[3] Attorney-General’s Department, ‘Copyright Law in Australia: A Short Guide’, 2000.

[4] Ibid.

[5] Australian Vice-Chancellors Committee (AVCC), Ownership of Intellectual Property in Higher Education Institutions, 1995.

[6] Ibid.

[7] Ibid.

[8] Twigg, C.A., Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment, Troy: Center for Academic Transformation, Rensselear Polytechnic, 2000.

[9] Burk, D., Ownership of Electronic Course Materials in Higher Education, Cause/Effect, 20, 3, 1997.

[10] Ibid.

[11] surpa n.1.


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